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ELECTRONICALLY FILED 3/15/2010 12:20 PM CV-2009-900019.00 CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA RUBY JONES, CLERK
ELECTRONICALLY FILED
3/15/2010 12:20 PM
CV-2009-900019.00
CIRCUIT COURT OF
LOWNDES COUNTY, ALABAMA
RUBY JONES, CLERK

EXHIBIT A

E-Filed 03/15/2010 @ 11:06:03 AM Honorable Robert Esdale Clerk Of The Court

IN THE SUPREME COURT OF ALABAMA

EX PARTE STATE OF ALABAMA; BOB RILEY, GOVERNOR, STATE OF ALABAMA; JOHN M. TYSON, SPECIAL PROSECUTOR FOR TASK FORCE ON ILLEGAL GAMBLING PER GOVERNOR'S EXECUTIVE ORDER #44; EMORY FOLMAR, ADMINISTRATOR OF THE ALABAMA ALCOHOLIC BEVERAGE CONTROL (ABC) BOARD; AND COL. CHRISTOPHER MURPHY, DIRECTOR DEPARTMENT OF PUBLIC SAFETY

(IN RE: RILEY, ET AL. V. CORNERSTONE COMMUNITY OUTREACH INC., ET AL.

AND

STATE OF ALABAMA V. CHAD DICKIE, ET AL.)

PETITION FOR A WRIT OF MANDAMUS

To the Circuit Court of Lowndes County (Honorable Robert S. Vance, Circuit Judge for Jefferson County, sitting by appointment) (Nos. 09-900019, 09-900027)

ORAL ARGUMENT NOT REQUESTED

Henry T. Reagan

OFFICE OF GOVERNOR BOB RILEY

600 Dexter Avenue Montgomery, Alabama 36130 (334) 242-7120 (334) 242-2335 (fax) sonny.reagan@governor. alabama.gov

Attorney for Petitioner Governor Bob Riley

John M. Tyson, Jr. Timothy W. Morgan Martha Tierney

OFFICE OF GOVERNOR BOB RILEY

600 Dexter Avenue Montgomery, Alabama 36130 (251) 574-3307 (251) 574-3311 (fax) john_tyson@mobile-da.org tmorgan@attorneygeneral.org martha_tierney@mobile-da.org

Attorneys for Petitioners

TABLE OF CONTENTS

Table of Authorities

i

Introduction

1

Statement of Facts

3

A. The Task Force

3

B. The Task Force’s investigation in White Hall

7

C. Cornerstone files the Injunction Action

7

D. Barber files the Forfeiture Action

8

E. This Court’s decision in the first appeal

9

F. The trial court’s order on remand

10

Issue Presented

15

Standard of Review

16

Reasons the Writ Should Issue

16

A. The special prosecutors have authority to represent the State and the Riley defendants

16

1. The prosecution and defense of these cases does not conflict with the AG’s and DA’s statutory

 

18

2. The trial court violated separation-of-powers

 

22

3. The Constitution would give the Governor ultimate control over this litigation if his directives conflicted with the

26

B. This court has jurisdiction to issue a writ of mandamus, and there is no other adequate remedy

30

Conclusion

30

Certificate of Service

32

i

TABLE OF AUTHORITIES

Cases

Baker v. Carr,

 

369

U.S. 186 (1962)

 

24, 25

Barber v. Cornerstone Community Outreach,

 
 

Nos. 1080805 & 1080806,

So. 3d

,

2009

WL 3805712 (Ala. Nov. 13, 2009)

 

passim

Birmingham-Jefferson Civic Ctr. Auth. v. City of

 

Birmingham,

 

912

So. 2d 204 (Ala. 2005)

 

24

Britnell v. Ala. State Bd. of Educ.,

 
 

374

So. 2d 282 (Ala. 1979)

 

19

Ex parte Cent. States Health & Life,

 
 

594

So. 2d 80 (Ala. 1992)

 

30

Ex parte Integon Corp.,

 
 

672

So. 2d 497 (Ala. 1995)

 

16

Ex parte Weaver,

570 So. 2d 675 (Ala. 1990)

Mobil Oil Corp. v. Kelley,

19, 23, 27, 28

353

F. Supp. 582 (S.D. Ala. 1973)

23

Piggly Wiggly No. 208, Inc. v. Dutton,

601

So. 2d 907 (Ala. 1992)

 

23, 24

Tyson v. Macon County Greyhound Park,

No. 1090548,

So. 3d

,

2010

WL 415271 (Ala. Feb. 4, 2010)

11

Statutes

ALA. CODE § 12-17-184

 

6, 17, 21

ALA. CODE § 12-17-212

5, 6

ALA. CODE § 12-17-216

passim

i

ALA. CODE § 28-3-40

5

ALA. CODE § 28-3-43

5

ALA. CODE § 32-2-2

4

ALA. CODE § 32-2-22

5

ALA. CODE § 36-13-9

4

ALA. CODE § 36-15-1

18, 19

ALA. CODE § 36-15-21

18, 19, 28

ALA. CODE § 41-15B-2 Other Authorities

28, 29

ALA. CONST. Art. III, § 42

22

ALA. CONST. Art. III, § 43

23

ALA. CONST. Art. V, § 112

27

ALA. CONST. Art. V, § 113

12, 22, 27

ALA. CONST. Art. V, § 120

27

ALA. CONST. Art. V, § 137 Rules

27

ALA. R. APP. P. 21

15

ii

INTRODUCTION

This is the second time this matter has come before

this Court. These cases arise from the execution of a war-

rant by agents of the Alabama Alcoholic Beverage Commission

and the Alabama Bureau of Investigation against an elec-

tronic “bingo” casino in Lowndes County.

The agents were

working in coordination with the Governor’s Task Force on

Illegal Gambling, an interdepartmental team of executive-

branch officials the Governor assembled to enforce Ala-

bama’s anti-gambling laws on a uniform, statewide basis.

The Task Force’s Commander is a Special Prosecutor with

statewide jurisdiction.

The Commander was initially David

Barber, a supernumerary district attorney, and is now peti-

tioner John Tyson, the District Attorney of Mobile County.

The Task Force also includes supernumerary district attor-

neys Ed Greene and Tim Morgan, and assistant district at-

torney Martha Tierney of Mobile County.

In a prior appeal relating to this investigation, this

Court addressed a preliminary injunction that gambling in-

terests obtained against the Governor and Task Force mem-

bers.

See Barber v. Cornerstone Community Outreach, Nos.

1080805 & 1080806,

So. 3d

, 2009 WL 3805712 (Ala.

1

Nov. 13, 2009). This Court reversed, holding that the gam-

bling interests had not established

even a reasonable

chance that their machines play charity “bingo” authorized

under local Amendments to the Alabama Constitution. In the

process, the

Court rejected

the gambling interests’

argument that only the Attorney General, and not the Gover-

nor’s appointees, had

the

authority to represent the

State’s interests in these matters before this Court. The

Court reasoned that “the record and briefs do not contain

or reflect an effort by Attorney General King to instruct

the Riley defendants not to appeal from the trial court’s

judgment against them, and he specifically does not ‘seek

to intervene as a party’ in this case and does not ‘take a

position on the merits of this appeal.’” Id. at *2 n.4.

But on remand, the trial court ignored this Court’s

analysis, held that the Governor’s appointees had no au-

thority to prosecute the matter, and ordered the AG to

superintend the case whether he wanted to or not.

The

court held that every pleading the DA and supernumerary DAs

had filed was a “nullity” because they had not obtained

“express authorization of the Attorney General” beforehand.

(Tab A at 12.)

Although the AG has thus far chosen not to

2

exercise any right he may have to appear in this case, the

trial court perceived a conflict between the AG and Gover-

nor and “direct[ed] the Attorney General to come in off the

sidelines and decide how the State’s interests are best

represented in these cases.” (Id. at 13.)

In trying to micromanage a complex executive-branch

relationship when neither of the executive officers in-

volved asked

it

to

do

so,

the

trial court violated

separation-of-powers principles. And as often happens when

one branch steps

into another’s sphere, the result was

error.

The court misconstrued the decisions the AG has

made, misinterpreted statutes authorizing the Governor to

take these actions, and created a constitutional crisis

where there was none.

This Court should remedy the sit-

uation and restore the proper separation of executive and

judicial powers with a writ of mandamus.

STATEMENT OF FACTS

A. The Task Force.

The facts surrounding the Task Force’s creation provide

important context here. As this Court has noted, “[o]n De-

cember 30, 2008, Governor Bob Riley issued Executive Order

No. 44 creating the Governor’s Task Force on Illegal Gam-

3

bling.”

Barber, 2009 WL 3805712, at *1.

The Governor was

concerned because gambling interests have tried to evade

Alabama law by asserting, falsely, that for-profit slot

machines qualify as charity “bingo” under local const-

itutional amendments.

Therefore, utilizing his statutory

power to “give, by his executive order, to existing agen-

cies and instrumentalities of the state government, such

powers and duties which are not in conflict with the Const-

itution of Alabama and which are not specifically prohi-

bited by the then existing statutes,” ALA. CODE § 36-13-9,

the Governor issued Executive Order 44. (Tab B.)

Executive Order 44’s stated

goal

was

to promote

“uniform statewide enforcement” of Alabama’s prohibition on

gambling.

(Id. at 3.)

The Task Force therefore includes

three types of officers with statewide jurisdiction:

1. Director of Public Safety.

First, the Task Force

includes the Director of Public Safety and agents and in-

vestigators he may designate.

(Tab B at 3.)

The Director

serves at the Governor’s pleasure.

ALA. CODE

§ 32-2-2.

State Troopers fall within

the Department of Safety’s

purview, and they have “the powers of peace officers in

4

this state and may exercise such powers anywhere within the

state.” Id. § 32-2-22.

2. ABC Administrator. The Task Force also includes the

Administrator of the Alcoholic Beverage Control Board and

any agents he chooses to designate.

(Tab B at 3.)

ABC

operates throughout the State. See ALA. CODE § 28-3-43(a).

Board members “may be suspended or removed by the Governor

at his pleasure.” Id. § 28-3-40. The Board’s agents “make

arrests and execute

search

warrants

and

have

the same

authority as designated to peace officers.”

43(a)(6).

3. Special Prosecutors.

The

Task Force

Commander who serves as Special Prosecutor.

Id. § 28-3-

also

has

a

Under Execu-

tive Order 44 as originally written, the Commander was to

be a supernumerary district attorney.

(Tab B at 3.)

Su-

pernumerary DAs are former DAs who meet certain qualifi-

cations. See ALA. CODE § 12-17-212. They “have and exercise

all the duties, power and authority of district attorneys.”

Id. § 12-17-216. They “shall,” if requested by the Gover-

nor, Chief Justice, or Attorney General, “conduct investi-

gations” and appear in “any circuit court” for “the prose-

cution of any criminal case or the prosecution or defense

5

of any case in which the state is interested.”

Id.

The

Governor or the AG, as well as any justice of this Court or

a judge of a Court of Appeals, may also request a super-

numerary DA to “perform duties as those prescribed for as-

sistant attorneys general.” Id. Governor Riley initially

appointed supernumerary DA David Barber as Task Force

Commander, and Barber served in that role when the two ac-

tions under review were commenced. (Tab C.)

Barber later resigned, and the Governor amended Execu-

tive Order 44 to provide that a sitting DA could also be

appointed as Commander and Special Prosecutor.

(Tab D.)

He did so under Section 12-17-184(10) of the Alabama Code,

which says a DA has the duty “[t]o go to any place in the

State of Alabama and prosecute any case or cases,

when called upon to do so by the Attorney General or the

Governor of the State of Alabama, and to attend sessions of

courts and transact all

of

the

duties of

the district

attorney in the courts whenever called upon by the Attorney

General or Governor to do so.” The Governor therefore ap-

pointed John M. Tyson, Jr., the current Mobile County DA,

to serve as Commander and Special Prosecutor.

(Tab E.)

Governor Riley has since appointed supernumerary DAs Tim

6

Morgan and Edgar Greene as Special Prosecutors, and Martha

Tierney, an Assistant DA from Mobile County, as Assistant

Special Prosecutor. (Id.)

B. The investigation in White Hall.

The White Hall Entertainment Center is a casino in

Lowndes County. The gambling interests assert that the ca-

sino’s machines play legal “bingo.”

But during an under-

cover investigation, Task Force agents developed probable

cause to believe that the machines were illegal.

Accord-

ingly, an ABC Agent working with the Task Force obtained a

warrant to seize the machines, servers, and other items at

White Hall. (Tab F.)

The next day, ABC agents and agents of the Alabama

Bureau of Investigation, acting in conjunction with the

Task Force when it was still led by Barber, executed the

warrant.

They seized approximately 105 machines, along

with the servers to which the machines were attached, over

$500,000 in cash, and records of illegal gambling activity.

(Tab K.)

C. Cornerstone files the Injunction Action.

During the seizure, the casino’s purported operator,

respondent Cornerstone Community Outreach, Inc., filed a

7

complaint

that

the Circuit

docketed as No. CV-2009-900019.

will

refer

to

that

case

as

Court

for Lowndes County

(Tab G.)

This petition

“the

Injunction Action.”

Cornerstone named Governor Riley, Commander Barber, Direc-

tor of Public Safety Chris Murphy, and ABC Administrator

Emory Folmar as defendants (“the Riley defendants”). Cor-

nerstone sought an injunction requiring the defendants to

return the machines and forbidding them from interfering

with the casino’s operations. (Id. at 8–9.) Freedom Trail

Ventures, Ltd. (“FTV”), claiming an ownership interest in

the seized

items, also moved

similar relief.

(Tabs H & I.)

to

intervene and sought

After

a

hearing, the

trial court,

former Justice

Kennedy presiding, granted Cornerstone and FTV a prelim-

inary injunction. (Tab J.) The Riley defendants appealed

to this Court.

D. Barber files the Forfeiture Action.

While the appeal in the Injunction Action was pending,

Barber filed an action seeking forfeiture of the machines

on the State’s behalf.

(Tab K.)

The circuit court dock-

eted that case as No. CV-2009-900027, and this petition

will refer to it as “the Forfeiture Action.”

8

By the time Barber filed the Forfeiture Action, Justice

Kennedy had asked the Administrative Office of Courts to

assign the Injunction Action to another judge.

After

initially the Injunction Action to Judge Robert Harper,

Chief Justice Cobb assigned both

cases to

Judge Robert

Vance of the Circuit Court for Jefferson County.

E. This Court’s decision in the first appeal.

This

Court

eventually

reversed

the

preliminary

injunction and, in so doing, addressed jurisdictional is-

sues that are relevant here. Henry Reagan, the Governor’s

Deputy Legal Advisor, had appeared as appellate counsel for

the Governor. Barber had appeared for the other three de-

fendants.

On this basis, Cornerstone and FTV had filed a

motion to dismiss

the

appeals,

arguing

that

“only the

attorney general is authorized to appeal the trial court’s

ruling.”

Barber, 2009 WL 3805712, at *4 n.2.

When the

Riley defendants opposed the motion, the AG submitted an

amicus brief addressing the issues.

(Tab L.)

As this

Court put it, the AG took “‘no issue with’ Governor Riley’s

hiring his own legal counsel or appearing in litigation

involving the State,” but urged “this Court to ‘reject the

Governor’s argument that he is vested with the authority to

9

appoint attorneys who

may name

and advance the State’s

legal position outside the direction and control of the

Attorney General.’”

Barber, 2009 WL 3805712, at *2 n.4

(quoting Tab L at 23–24).

This Court denied

Cornerstone and FTV’s motion to

dismiss.

The Court said it was not necessary to address

the questions the AG had raised in light of two consider-

ations.

and

had

First, “Governor Riley is a party to this case,”

duly

appealed a judgment

entered against him

through his deputy legal counsel. Barber, 2009 WL 3805712,

at *2 n.4.

Second, “the record and briefs do not contain

or reflect an effort by Attorney General King to instruct

the Riley defendants not to appeal from the trial court’s

judgment against them, and he specifically does not ‘seek

to intervene as a party’ in this case and does not ‘take a

position on the merits of this appeal.’” Id. (quoting Tab

L at i, 1).

F. The trial court’s order on remand.

On remand, the trial court issued an order, sua sponte,

in both actions. Significantly, it entered that order af-

ter this Court’s decision in Tyson v. Macon County Grey-

hound Park, No. 1090548,

So. 3d

10

, 2010 WL 415271

(Ala. Feb. 4, 2010), which held that courts have no juris-

diction to entertain civil actions seeking declaratory and

injunctive relief of the kind Cornerstone and FTV had re-

quested.

While recognizing that decision’s relevance to

the Injunction Action, the trial court stated that it “per-

ceive[d] its possible jurisdiction to address the issue of

whether the Governor’s Task Force on Illegal Gambling is

constitutionally authorized to take the actions made the

basis of the complaint in” the Injunction Action. (Tab M.)

The trial court also stated that these constitutional ques-

tions “could also affect the Task Force’s standing to bring

the civil forfeiture action.”

(Id.)

The court therefore

ordered the parties

to submit simultaneous memoranda

addressing, as pertinent here, whether “Ala. Code § 12-17-

216

and

Governor’s

Executive

Order

44

--

on

which the

creation of the Task Force is based -- conflict in any way

with provisions of the Alabama Constitution.”

(Id.)

The

order gave no further hints about which constitutional pro-

visions the trial court believed might be in play.

The

State and

Riley

defendants made two points in

response. (Tab N.) First, they observed that the consti-

tutionality of § 12-17-216 of the Alabama Code and Execu-

11

tive Order 44 were not at issue.

Section 12-17-216 -- the

provision authorizing the Governor to direct supernumerary

DAs to litigate cases -- was no longer relevant because

that provision had authorized Barber’s appointment, and by

the time of the response, Barber had resigned.

Tyson’s appointment

had

been governed by

(Id. at 8.)

a different

statute.

Likewise, Executive Order 44 was not at issue

because the warrant had been obtained by an ABC Agent, not

by the “Task Force” per se.

(Id. at 7.)

Second, the State and the Riley defendants noted that

in light

of

the

Constitution’s grant of “[t]he supreme

executive power of this state” to the Governor, ALA. CONST.

Art. V, § 113, there was no argument that either of those

provisions was unconstitutional.

The gambling interests

had raised no such argument, and to the extent they did in

the future, the State and Riley defendants requested “an

opportunity to offer a full response.” (Tab N at 10.)

On the same day, Cornerstone and FTV submitted their

own memorandum in response to the court’s order. (Tab O.)

They attached an affidavit of John Andrews, District Attor-

ney for Lowndes County, stating that he had decided not to

bring criminal charges against Cornerstone himself. (Tab O

12

Exh. 4.) Cornerstone and FTV argued that the Governor had

no authority to direct a Supernumerary DA to investigate

and prosecute the civil-forfeiture case.

The trial

court had served

the

AG

with

its order

requesting views on the constitutionality of § 12-17-216

and Executive Order 44. The AG expressly waived his right

to respond. (Tab P.)

Other

than

to

ask for briefing on jurisdictional

questions that are not pertinent to this mandamus petition,

the trial court never asked for briefing on any subject

other than “whether Ala. Code § 12-17-216 and Governor’s

Executive Order 44 -- on which the creation of the Task

Force is based -- conflict in any way with provisions of

the Alabama Constitution.” (Tab M.)

Nor did it ask for or

receive further briefing, or hold a hearing, after the par-

ties submitted their simultaneous briefs in response to its

order calling for briefing on that subject.

But six business days after the parties submitted their

memoranda, the court issued a 13-page order did not resolve

the question on which it had called for briefing. Instead,

that Order disqualified the Special Prosecutors, on stat-

13

utory grounds, from representing the State and Riley de-

fendants. (Tab A.)

The court stated that while the use of ABC Agents and

State Troopers to conduct the seizure was unproblematic,

the court was “concerned with the Governor’s efforts to

appoint a Special Prosecutor.”

(Tab A at 7.)

The court

had reviewed the brief the AG had submitted to this Court

during the preliminary-injunction appeal (Tab L), and

concluded that “in filing the Answer and Counterclaim in

the Declaratory Judgment Action, the Petition

in

the

Forfeiture Action, and all other filings in these actions,

attorney Barber did so without express authorization of the

Attorney General.”

(Tab A at 12.)

Barber’s filings, the

court said, “must thus be regarded as a nullity.”

(Id.)

Likewise, the court held that Tyson could not represent the

State or

the

Riley defendants

because

the

AG

had

not

affirmatively and

expressly

authorized

him

to

do

so

in

advance.

(Id.)

The court concluded that “the attorneys

who have appeared

for the Governmental Parties may not

continue to represent these parties in the Declaratory

Judgment Action, nor may they prosecute the Forfeiture

Action, unless the Attorney General expressly ratifies what

14

they have done up to this point and authorizes them to

continue in this representation.” (Id.)

The court then required the AG to appear in these cases

and assume “direction and control” of them.

(Id. at 13.)

The court acknowledged that it “may not dictate what the

Attorney General’s decisions must be,” but concluded that

it could “direct the Attorney General to come in off the

sidelines and decide how the State’s interests are best

represented in these cases.”

(Id.)

The court gave the AG

until March 22, 2010, “to advise the Court and the parties

of his position,” and stated that it would “thereafter de-

termine the course of further proceedings in these related

cases.” (Id.)

The court issued the order on March 8, 2010.

This man-

damus petition, submitted seven days later, is timely under

Rule 21(a)(3) of the Alabama Rules of Appellate Procedure.

ISSUE PRESENTED

Whether, in light of the AG’s decision not to directly

intervene in these cases, the trial court erred in deter-

mining that a district attorney and supernumerary district

attorneys had no authority to represent the State’s inter-

ests at the Governor’s direction.

15

STANDARD OF REVIEW

This Court will issue a writ of mandamus when there is

“(1) a clear legal right in the petitioner to the order

sought; (2) an imperative duty upon the [trial court] to

perform, accompanied by a refusal to do so; (3) the lack of

another adequate remedy; and (4) properly invoked juris-

diction of the court.”

497, 499 (Ala. 1995).

Ex parte Integon Corp., 672 So. 2d

Because each of these elements is

present here, this Court should issue the writ.

REASONS THE WRIT SHOULD ISSUE

A. The special prosecutors have authority to represent the State and the Riley defendants.

The Special Prosecutors have a clear right to represent

the State and the Riley defendants, and the trial court had

an imperative duty to allow them to do so.

The Alabama

Code’s plain terms give the Special Prosecutors authority

to proceed.

Section 12-17-216 says a supernumerary DA

“shall,” if requested by the Governor, “conduct investiga-

tions” and appear in “any circuit court” for “the prosecu-

tion of any criminal case or the prosecution or defense of

any case in which the state is interested.”

ALA. CODE § 12-

17-216.

Section 12-17-184(10) makes it the duty of every

sitting DA, when called upon by the Governor, to “go to any

16

place in the State of Alabama and prosecute any case or

cases” and “attend sessions of courts and transact all of

the duties of the district attorney in the courts.”

Id.

§ 12-17-184(10).

Barber and Greene, as supernumerary DAs,

and Tyson, as a sitting DA, were all duly requested by the

Governor to represent the State in these cases.

(Tab E.)

The Code thus expressly authorized their representation of

the State and the Riley defendants.

The trial court’s contrary conclusion was based on non-

textual limitations that the court read into the statutes.

It

created these

limitations from whole cloth

in

a

professed attempt to avoid “wad[ing] into a constitutional

quagmire.”

(Tab A at 11.)

But in doing so, the court

created a quagmire where none had previously existed. The

AG has never sought to take over this litigation.

He has

made the decision

to allow

the Special Prosecutors to

proceed while continuing to monitor the cases. Indeed, he

explained in his amicus brief in the prior preliminary-

injunction appeal that he would decline to intervene in

what he described as a “test case” brought by Barber. (Tab

L at 2.)

As a result, the court below had no need to

resolve the theoretical question of which constitutional

17

office -- the Governor or AG -- would have ultimate control

over this litigation in the event that an express conflict

arose within the executive branch about the direction this

case should take.

No such conflict has arisen.

In re-

fusing to accept the AG’s informed decision not to super-

intend, the trial court accorded insufficient respect to

the way the AG has exercised his discretion in this case.

And in entering an order compelling the AG to directly

intervene, the trial committed a serious violation of the

separation of powers.

The prosecution and defense of these cases does

not conflict with duties.

In concluding that the Special Prosecutors had no power

1.

AG’s and DA’s statutory

the

to proceed, the trial court misinterpreted two statutes

setting out the AG’s powers.

The first says that the AG

will “attend to all cases” in which the State is concerned,

ALA. CODE § 36-15-1(2), and the second says that all litiga-

tion concerning the State is “under the direction and con-

trol of the Attorney General,” id. § 36-15-21. The Special

Prosecutors’ representation of the Governmental Parties

does not conflict with those provisions in any way.

18

Nothing in those statutes requires the AG to formally

appear in every case involving the State.

Most cases in-

volving the State are litigated at the trial-court level by

DAs without the AG’s advance approval or direct involve-

ment. That is so not only because of practical considera-

tions, but also because of what the statutes say.

The

words “attend to,” found in § 36-15-1(2), do not necessar-

ily mean “appear in.”

They instead mean that the AG is to

monitor cases

involving the State

State’s interests are represented.

and

ensure

that the

Similarly, this Court

has held that § 36-15-21’s statement that State-related

litigation is “under the direction

and

control

of

the

Attorney General” does not require that the AG actually

litigate every case involving the State.

See Britnell v.

Ala. State Bd. of Educ., 374 So. 2d 282, 285 (Ala. 1979).

Instead, § 36-15-21 does no more than give the AG dis-

cretion to appear and, if he deems it appropriate, super-

intend the litigation.

675, 684 (Ala. 1990).

See Ex parte Weaver, 570 So. 2d

The trial court thus erred when it

ruled that Barber’s filings were “a nullity” because he had

submitted them “without express authorization of the Attor-

ney General.” (Tab A at 12.)

19

Nor was there any basis for the trial court’s assertion

that the Special Prosecutors are acting with “unfettered

independence” and are not “answerable” to the AG.

(Tab A

at 11.)

The Special Prosecutors are DAs. They are acting

with no more “independence” than any DA has in any run-of-

the-mill case in which

the

AG

has not directly super-

intended.

Whether or not the AG would have the right to

superintend this case if he chose to do so, the fact is

that he has thus far decided not to.

His choice to let the

Special Prosecutors proceed was within his prerogative and

must be respected.

That conclusion is compelled by this Court’s decision

in the preliminary-injunction appeal. The Court there re-

jected the gambling interests’ assertion that because of

the AG’s duty to “attend to” and “direct” all litigation

involving the State, only he could represent the Riley de-

fendants in the appeal.

The Court observed, among other

things,

that “the

record and briefs

do

not

contain or

reflect an effort by Attorney General King to instruct the

Riley defendants not to appeal from the trial court's judg-

ment against them, and he specifically does not ‘seek to

intervene as a party’ in this case and does not ‘take a po-

20

sition on the merits of this appeal.’”

Barber, 2009 WL

3805712 at *2 n.4.

This Court thus necessarily rejected

the trial court’s theory that the Special Prosecutors need

the AG’s “express authorization.” Instead, this Court held

that no justiciable issue of authority arises unless the AG

has

“instruct[ed]”

them

not

to proceed,

or

the

AG

has

otherwise sought to “intervene” in the litigation. The AG

has done neither of those things, so the trial court’s

order was contrary to this Court’s decision.

It makes no difference that the Special Prosecutors did

not consult with the Lowndes County DA before proceeding in

these cases, and it makes no difference that the Lowndes

County DA, who has not appeared in these cases, has now

submitted an affidavit stating that he previously decided

not to file “criminal charges” against Cornerstone himself.

(Tab O Exh. 4 at 2.)

The Code provisions that authorized

the Governor to “direct” the special prosecutors, ALA. CODE

§§ 12-17-184(10) & 12-17-216, say nothing about requiring

the Governor and Special Prosecutors to consult with the

local DA.

Indeed, § 12-17-184(10) expressly requires any

sitting DA, including the DA of Lowndes County, to litigate

a case if the Governor so directs. The Lowndes County DA’s

21

affidavit does not state that he objects to the Task Force

Commander’s prosecution of the civil-forfeiture proceeding.

Cf. Tab O Exh. 4 at 2 (stating merely that he decided not

to bring any “criminal charges” himself).

But even if he

did object, nothing in the Alabama Code would allow him to

overrule the Governor’s directive. If any statute purport-

ed to do so, it would be unconstitutional.

See ALA. CONST.

Art. V, § 113 (“The supreme executive power of this state

shall be vested in a chief magistrate, who shall be styled

‘The Governor of the State of Alabama.’”).

There was thus no basis for the trial court to conclude

that the Special Prosecutors had no authority to represent

the State and the Riley defendants.

2.

The trial court violated separation-of-powers principles.

The trial court compounded its error when, on top of

misconstruing the choices the AG has made, it “direct[ed]

the Attorney General to come in off the sidelines.” (Tab A

at 13.) Section 42 of the Constitution says “[t]he powers

of the government of the State of Alabama shall be divided

into three distinct departments,” ALA. CONST. Art. III, § 42,

and Section 43 provides that “the judicial [branch] shall

22

never exercise the

executive powers,” id. § 43.

In

ordering the AG to exercise his authority in this way, the

trial court violated these principles.

This Court has explained that in light of Sections 42

and 43, a court may not “direct” an executive officer’s

“manner of

exercising discretion or to compel the per-

formance of a duty in a certain manner where the perform-

ance of that duty rests upon an ascertainment of facts, or

the existence of conditions, to be determined by an officer

in his judgment or discretion.”

Piggly Wiggly No. 208,

Inc. v. Dutton, 601 So. 2d 907, 911 (Ala. 1992).

That is

precisely what the trial court did here. The AG’s power to

intervene in litigation is discretionary, not mandatory.

In cases in which it exists, his superintendment power is

simply “the power to discontinue [a case] if and when, in

his opinion, this should be done.”

Weaver, 570 So. 2d at

680 (emphasis added) (internal quotation marks omitted).

The AG “has wide discretion in determining what actions he

should take in protecting what he conceives to be the best

interest of the State of Alabama and the citizens thereof.”

Mobil Oil Corp. v. Kelley, 353 F. Supp. 582, 586 (S.D. Ala.

1973).

Just as “mandamus

will

23

not

lie

to

compel

a

prosecuting attorney to institute a criminal prosecution”

if he chooses not to do so, Piggly Wiggly, 601 So. 2d at

910 (internal quotation marks omitted), the trial court

could not order the AG to formally intervene here.

Indeed, whether the AG should exercise any discretion

to superintend in a given case is a nonjusticiable politic-

al question that a court has no jurisdiction to resolve.

As this Court has explained, the “[t]he presence of one or

more of the factors” from Baker v. Carr, 369 U.S. 186

(1962), “indicates that a question is ‘political,’ that is,

one reserved for, or more suitably determined by, one of

the political branches of government.”

Birmingham-Jeffer-

son Civic Ctr. Auth. v. City of Birmingham, 912 So. 2d 204,

215 (Ala. 2005). Several of the factors are present here.

There is, as an initial matter, “the impossibility of

deciding” whether the AG

should intervene “without an

initial policy determination of a kind clearly for non-

judicial discretion.”

Baker, 369 U.S. at 217.

The AG’s

decision not to superintend the case marks a prototypical

exercise of discretion by an executive-branch official, and

a court may not reverse it.

24

There

is

also

“the

impossibility

of

a

court’s

undertaking independent resolution” of this question “with-

out expressing lack of the respect due coordinate branches

of government.”

Baker, 369 U.S. at 217.

It is not as if

the AG made no decision about this case: he affirmatively

decided not to intervene at this time.

The trail court,

calling the AG’s stance “curious,” ordered him to make a

different decision and choose a different approach. (Tab A

at 12.) The respect due to the executive branch precluded

the court from commandeering the AG in that way.

There is, finally, “an unusual need for unquestioning

adherence to a political decision already made.”

Baker,

369 U.S. at 217.

The Governor has directed the Special

Prosecutors to proceed, and the AG has publicly acknow-

ledged his ongoing observation of the proceedings and his

decision not to intervene at this time. The trial court’s

order was based on its belief that the Governor and AG have

expressed different viewpoints about electronic “bingo” and

its belief

that

it could

force

the

Governor’s efforts. (Tab A at 12–13.)

AG

to

oppose the

But the AG has cho-

sen not to intervene, and the separation of powers preclud-

ed the court from undoing that decision.

25

3.

The Constitution would give the Governor ultimate control over this litigation if his directives conflicted with the AG’s.

If

this case

were

to

raise a conflict between the

Governor and AG, it would only be because the trial court’s

order would have unnecessarily forced that conflict to

occur.

As of now, there is no conflict, and no need for

this Court

or

any other

court

to decide which const-

itutional officer should have ultimate authority over this

litigation.

The “constitutional quagmire” about which the

trial court was so concerned would arise only if its order

were allowed to stand -- and only if, as a result, the Go-

vernor and AG took different views about the future of

these cases.

If this Court grants the writ on the grounds

discussed above, there will be no need to address what

would happen if that situation arose.

Nevertheless, to

the extent that

the trial court’s

reasoning assumed that the AG’s views would necessarily

prevail in that circumstance, the Governor submits, with

due respect for the AG and his Office, that this assumption

was wrong. The Constitution says “[t]he supreme executive

power of this state shall be vested in a chief magistrate,

who shall

be styled

‘The

Governor

26

of

the

State

of

Alabama.’” ALA. CONST. Art. V, § 113. The Constitution also

says “[t]he governor shall take

faithfully executed.”

Id. § 120.

care

that

the

laws

be

The Constitution makes

the “attorney-general” an officer of the executive branch,

id. § 112, and does not say that the AG can override the

Governor’s “supreme executive power.”

The Constitution

simply says that the AG “shall perform such duties as may

be prescribed by law.”

Id. § 137.

It follows, then, that

if a conflict were to arise between the Governor and AG

about the course of litigation, the Constitution would

require the Governor’s views to prevail.

This Court’s decision in Ex parte Weaver, 570 So. 2d

675 (Ala. 1990), admittedly has language that could be used

to support the contrary proposition.

But Weaver need not

be read in a way that conflicts with the Constitution.

It

is true that in that case, the Court held that in the event

of a conflict between the AG and the Insurance Commissioner

-- a gubernatorial appointee -- the AG’s views were to

prevail. But Weaver did not involve a situation, like the

one here, in which the Governor himself had expressly di-

rected executive officials to enforce the law, statewide,

in a particular way.

27

To the extent Weaver actually held that the AG’s views

would prevail in these circumstances, that aspect of its

holding would need to be overruled if the issue had to be

reached.

That holding could not be reconciled with the

Constitution’s language.

As Justice Houston observed in

his Weaver dissent, “[w]hen considered in the light of the

Governor’s constitutional mandate, the seemingly broad

power granted to the attorney general by [Ala. Code] § 36-

15-21 to direct and control litigation

is

clearly re-

stricted.” 570 So. 2d at 688 (Houston, J., dissenting).

In the years since Weaver, the Legislature has recog-

nized that the Constitution does not give the AG power to

overrule the Governor in State-related litigation. Section

41-15B-2(i) of the Alabama Code states that “[a]ny con-

flicting prior law notwithstanding, the Governor, or the

Attorney General with the consent of the Governor, shall

file any litigation necessary to effectuate the compelling

interest of the State of Alabama to recover tobacco-related

damages incurred by the state or pursue any other legal

cause of action in which the state has an interest.” ALA.

CODE § 41-15B-2(i) (emphasis added.) The same provision

states that the Governor “may institute or participate in

28

any civil litigation in which the state has an interest.”

Id.

It also specifies if the AG fails to bring litigation

requested by the Governor, the Governor may “institute” it

himself.

Id.

The AG has previously argued that this

statute is limited to tobacco litigation.

(Tab L at 19–

23.)

Even if the statute could be read in that limited

way, the statute at least demonstrates that the Legislature

believes that the Constitution does not make the AG’s liti-

gation decisions binding on the Governor.

The foregoing suggests that the trial court’s decision

to disqualify the Governor’s

selected attorneys was

contrary not only to governing statutes, but to the Const-

itution as well.

But this Court need not and should not

decide whether the Governor or AG holds the ultimate trump

card at this time.

In the very least, the lower court

erred when it held that in spite of their directive from

the Governor,

the

Special Prosecutors needed the AG’s

“express authorization” before proceeding. (Tab A at 12.)

The trial court’s contrary decision would force the courts

to decide a significant constitutional dispute that other-

wise does not exist.

29

B.

This court

mandamus, and there is no other adequate remedy.

has

jurisdiction

to

issue

a

writ

of

Mandamus is the proper remedy.

The trial court dis-

qualified the Special Prosecutors and declared their fil-

ings a nullity.

This Court has held that “the correct

method for seeking review of a lower court’s ruling on a

motion to disqualify an attorney

is by a petition for

writ of mandamus only.”

Ex parte Cent. States Health &

Life, 594 So. 2d 80, 81 (Ala. 1992).

As Central States

explains, mandamus is the only available remedy here.

CONCLUSION

Because the Special Prosecutors have a clear right to

represent the State and the Riley defendants, this Court

should issue a writ of mandamus ordering the trial court to

vacate its order holding that the Special Prosecutors have

no authority to represent their clients and declaring their

filings a nullity.

Respectfully submitted,

s/ Timothy W. Morgan

Supernumerary District Attorney and Special Prosecutor

30

OF COUNSEL:

John M. Tyson, Jr. Timothy W. Morgan Martha Tierney

OFFICE OF GOVERNOR BOB RILEY

600 Dexter Avenue

Montgomery, Alabama 36130 (251) 574-3307 (251) 574-3311 (fax) john_tyson@mobile-da.org tmorgan@attorneygeneral.org martha_tierney@mobile-da.org

Attorneys for Petitioners State of Alabama, Governor Bob Riley, John M. Tyson, Jr., Emory Folmar, and Chris Murphy

Henry T. Reagan

OFFICE OF GOVERNOR BOB RILEY

600 Dexter Avenue

Montgomery, Alabama 36130 (334) 242-7120 (334) 242-2335 (fax) sonny.reagan@governor.alabama.gov

Attorney for Petitioner Governor Bob Riley

31

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document has been served on this 15th day of March, 2010, to the following by email or by other delivery method as noted:

Collins Pettaway, Jr. Chestnut, Sanders, Sanders, & Pettaway, LLC. P.O. Box 1290 Selma, AL 36702-1290 collins_pettawayjr@yahoo.com

Robert D. Segall Lee H. Copeland J. David Martin Shannon L. Holliday Copeland, Franco, Screws & Gill, P.A. P.O. Box 347 Montgomery, Alabama 36101-0347 segall@copelandfranco.com

Joe Espy, III William M. Espy Melton, Espy, & Williams, P.C. P.O. Drawer 5130 Montgomery, AL 36103 jespy@mewlegal.com

The Honorable Troy King Office of the Attorney General

500 Dexter Avenue

Montgomery, Alabama 36130 troyking@ago.state.al.us

The Honorable Robert S. Vance

Jefferson County Courthouse, Room 330

716 Richard Arrington, Jr. Blvd. N

Birmingham, Alabama 35203 (via hand delivery or US Mail)

s/ Tim Morgan

32

OF COUNSEL

TAB A

ELECTRONICALLY FILED 3/8/2010 9:58 AM CV-2009-900019.00 CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA RUBY JONES, CLERK
ELECTRONICALLY FILED
3/8/2010 9:58 AM
CV-2009-900019.00
CIRCUIT COURT OF
LOWNDES COUNTY, ALABAMA
RUBY JONES, CLERK

IN THE CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA

Cornerstone Community

)

Outreach, Inc., et al,

)

)

Plaintiff,

)

)

v.

)

CV-2009-9000019

)

)

Bob Riley, et al,

)

)

Defendants.

)

State of Alabama,

)

)

Plaintiff,

)

)

v.

)

CV-2009-9000027

)

)

Chad Dickie, et al,

)

)

Defendants.

)

ORDER

This order comes after consideration of the parties’ filings made in response to the prior order of February 11, 2010, in these related cases.

In the first of these cases, Cornerstone Community Outreach, Inc., et al, v. Riley (CV-09-900019)(hereafter referred to as the “Declaratory Judgment Action”), this Court, though retired Justice Mark Kennedy, previously entered a preliminary

injunction that was thereafter appealed.

Supreme Court’s opinion in Barber v. Cornerstone Community Outreach, Inc., ---

The following facts come from the

So.3d ----, 2009 WL 3805712 (Ala., Nov. 13, 2009):

On December 30, 2008, Governor Bob Riley issued Executive Order No. 44 creating the Governor's Task Force on Illegal Gambling (“the Task Force”). The order stated that the purpose of the Task Force was “promoting and supporting uniform statewide enforcement of Alabama's anti-gambling laws and to carry out the Alabama Constitution's strong public policy against lotteryschemes and illegal gambling.” The order created a special prosecutor to serve as the commander of the Task Force, who, in that capacity, is empowered to “have statewide

jurisdiction” to “conduct investigations, attend any regular, adjourned or special

for the investigation of or the prosecution of any

criminal case or the prosecution or defense of any case related to gambling activity in the State of Alabama.” Governor Riley appointed former Jefferson County District Attorney David Barber as Task Force commander.

session of any circuit court

Cornerstone Community Outreach, Inc. (“Cornerstone”), obtained a license from the Town of White Hall in Lowndes County to operate a bingo-gaming facility, which is known as the White Hall Entertainment Center (“the EC”). An LCD screen outside the EC advertises that the EC offers “HOT SLOTS!” for its customers. The EC contains several hundred electronic gaming machines that are played by hundreds of customers every day. Cornerstone purportedly obtained its license so that it could operate charity bingo games in accordance with Amendment No. 674, Ala. Const. 1901 (Local Amendments, Lowndes County, § 3, Ala. Const. 1901 (Off.Recomp.)).

Pursuant to its mandate, the Task Force on March 19, 2009, executed a search warrant on the EC and confiscated approximately 105 electronic gaming machines, the servers to which those machines were attached, over $500,000 in proceeds from the games played at the EC, and various records kept by Cornerstone.

Id. at *1.

Evidence presented in the preliminary injunction hearing also showed that neither the Alabama Attorney General nor any member of his staff was on the Task Force that conducted the raid, and that Lowndes County District Attorney John Andrews was not involved, either. District Attorney Andrews, in fact, has recently submitted an affidavit in which he testified to the following:

1. He inspected the bingo machines in question before the White Hall Entertainment Center opened, and spoke with various individuals about how

2

the machines worked;

2. He exercised his prosecutorial judgment not to bring any criminal charges relating to the operation of the machines;

3. He has never been contacted by anyone connected with the Governor’s Task Force to discuss investigating or closing the White Hall facility; and

4. He did not even know of the Task Force raid until it had been accomplished.

Also brought out during the preliminary injunction hearing was evidence that the raid was conducted pursuant to a search warrant signed by the Lowndes County district judge. The warrant was based on an affidavit provided to the judge by Mike Reese, who is a Lieutenant with the Alabama Alcoholic Beverage Control Board, Enforcement Division. Once the warrant was obtained, members of the ABC and the Alabama Bureau of Investigation conducted the raid.

Again quoting from the Supreme Court’s Cornerstone opinion:

In the early afternoon on March 19, 2009, Cornerstone filed an action in the Lowndes Circuit Court against Governor Riley, in his official capacity, Barber, in his official capacity as the Task Force commander, and certain other members of the Task Force in their official capacities (collectively “the Riley defendants”). Cornerstone sought, among other things, a declaratory judgment and preliminary and permanent injunctive relief regarding the seizure of the electronic gaming machines by the Task Force. Specifically, Cornerstone requested a judgment declaring that its bingo operation at the EC is permitted under Amendment No. 674, Ala. Const.1901, and whether the electronic gaming machines seized by the Task Force constitute illegal “slot machines” under § 13A-12-27, Ala.Code 1975. Cornerstone requested a preliminary injunction restraining the Task Force from any further interference with its operation at the EC during the pendency of this action and directing the Task Force to return all the seized machines, servers, and records based on its belief that the machines are legal under Alabama law.

Freedom Trail Ventures, Ltd. (“FTV”), subsequently filed a motion to intervene in the action, alleging that it owned at least some of the machines seized by the Task Force and that it had leased those machines to Cornerstone. The trial court granted FTV's motion for the limited purpose of allowing it to participate in the preliminary-injunction phase of the proceeding.

3

Id. at * 1-2.

In response, the defendantsin theDeclaratory Judgment Action filed an Answer and Counterclaim, on April 20, 2009. The defendants’ counterclaim seeks a declaratory judgment that the games being played at the White Hall facility constituted illegal gaming rather than bingo under Amendment 674, that the machines used were illegal gambling devices, and that the items seized during the raid are properly the subject of forfeiture proceedings.

The defendants’ Answer and Counterclaim was signed by “David Barber, Supernumerary District Attorney, Special Prosecutor and Commander of the Governor’s Task Force on Illegal Gambling and Gubernatorially Appointed Attorney, on behalf of all Defendants.” Recently, John M. Tyson, Jr., Martha Tierney, and Edgar Greene filed a notice of appearance as “Special Prosecutors for the Governor’s Task Force on Illegal Gambling.” (The Court understands from media accounts that David Barber is no longer with the Governor’s Task Force, although Mr. Barber has not yet filed a motion to withdraw).

Also pending before the Court is the related case of State of Alabama v. Chad Dickie, et al (CV-09-900027), which is a forfeiture action brought pursuant to Ala. Code §13A-12-30 (referred to hereafter as the“Forfeiture Action”). The complaint, which seeks the forfeiture of both money and gambling devices, was signed by “David Barber, as Commander and Special Prosecutor of Governor’s Task Force on Illegal Gambling and as Supernumerary District Attorney with Authority Conferred by Gubernatorial Appointment, ex rel. State of Alabama.” In this case as well, John M. Tyson, Jr., Martha Tierney, and Edgar Greene recently filed a notice of appearance as “Special Prosecutors for the Governor’s Task Force on Illegal Gambling.”

Cornerstone Community Outreach, Inc., and Freedom Trail Ventures, Ltd., as the defendants in the Forfeiture Action, have filed motions to dismiss the complaint. Each motion asserts, inter alia, that “Petitioner and its counsel lack the legal authority to assert this forfeiture petition.” The motions remain pending.

This Court must eventually address the extent to which further proceedings in these actions are affected by the Supreme Court’s Cornerstone decision and its subsequent decision of Tyson v. Macon County Greyhound Park, Inc., --- So.3d ----,

4

2010 WL 415271 (Ala., Feb. 4, 2010). Even before reaching those issues, however, this Court must address whether counsel of record for the Governmental Parties (i.e., the defendants in the Declaratory Judgment Action and the State of Alabama in the Forfeiture Action) can in fact appear and represent those parties.

This inquiry begins with Executive Order 44, which Governor Riley signed on December 29, 2008. The Executive Order generally provides the following:

1. The Governor’s Task Force on Illegal Gambling is created “for the

purpose of promoting and supporting uniform statewide enforcement of

Alabama’s anti-gambling laws and to carry out the Alabama Constitution’s

strong public policy against lottery schemes and illegal gambling.”

Director of the Department of Public Safety and the Administrator of the Alcoholic Beverage Control Board, and such agents as each may designate,

are included in the Task Force.

Force are to serve “as a resource for local prosecutors and law enforcement officials who request assistance in the investigation and prosecution of gambling-related offenses” and to “provide technical assistance, investigative support, law enforcement personnel, and any other assistance requested by local authorities reasonably necessary to enforce Alabama’s anti-gambling law.”

The

Among the responsibilities of the Task

2. A supernumerary district attorney is designated as a Special

Prosecutor and Commander of the Task Force. Pursuant to Ala. Code § 12- 17-216, this Special Prosecutor “shall have statewide jurisdiction and is hereby authorized, with the support of the Task Force, to conduct investigations, attend any regular, adjourned or special session of any circuit court, in anyof the judicial circuits of Alabama for the investigation of or the prosecution or defense of any case related to gambling activity in the State of Alabama.”

The statute cited therein, Ala. Code § 12-17-216, provides the following:

Supernumerary district attorneys shall take the oath of office prescribed by the constitution for judicial officers and shall have and exercise all the duties, power and authority of district attorneys ofthe judicial circuits or circuit courts and shall, upon request of the Governor, the Chief Justice of the Supreme Court or the Attorney General, conductinvestigations, attend anyregular, adjourned or special

5

session of any circuit court in any of the judicial circuits of Alabama for the investigation of or the prosecution of any criminal case or the prosecution or defense of any case in which the state is interested. The Governor, any member of the Supreme Court or courts of appeals or the Attorney General may request a supernumerary district attorney to perform duties as those prescribed for assistant attorneys general, either in their respective offices or at such other places within or without the state as such officials may assign him. When on such special assignment at the request or designationof one of the aforementioned officials and performing duties as those prescribed for assistant attorneys general, the supernumerary district attorney shall have all the powers and authority of an assistant attorney general and shall be entitled to the same amount of sick leave and annual leave that accrues to an assistant attorney general; and, while performing such duties at the request of the Attorney General, he shall be designated as a special assistant attorney general.

Governor Riley signed Amendment 1 to this Executive Order on January 25, 2010. Among other things, this amendment recognizes the Governor’s authorityto appoint district attorneys or assistant district attorneys to serve as Special Prosecutors pursuant to Ala. Code § 12-17-184(10), which provides as follows:

It is the duty of every district attorney and assistant district attorney, within the circuit, county, or other territory for which he or she is elected or appointed:

*

*

*

(10) To go to any place in the State of Alabama and prosecute any case or cases, or work with any grand jury, when called upon to do so by the Attorney General or the Governor of the State of Alabama, and to attend sessions of courts and transact all of the duties of the district attorney in the courts whenever called upon by the Attorney General or the Governor to do so.

(The Court understands that the basis for this amendment is the fact that Mr. Tyson – recently appointed by the Governor to serve as the Commander and Special Prosecutor of the Task Force – remains the current District Attorney for Mobile County, thus rendering the supernumerary district attorney statute inapplicable).

Certain goals of the Executive Order, as amended, appear uncontroversial, such as coordinating investigative efforts of various executive agencies and serving as a resource for local law enforcement authorities. That certain personnel connected with the Task Force participated in the raid of March 19, 2009, moreover, does not concern the Court at this juncture because there is independent statutory authority

6

enabling personnel to act as peace officers in obtaining and executing on the search warrant.

As discussed above, for example, the search was conducted pursuant to a warrant

issued to Mike Reese, with the ABC Board, an executive agencywith statewide law

enforcement authority.

appoint agents, inspectors or investigators and commission them to make arrests and

execute search warrants). The warrant was executed by ABC agents and Alabama State Troopers, who are under the direction of the Alabama Department of Public

Safety, also an agency with defined law enforcement authority. See, e.g., Ala. Code

§ 32-2-22 (state troopers have statewide powers of peace officers); see also Roberts v. State ex rel. Cooper, 253 Ala. 565, 568, 46 So.2d 5, 7 (Ala. 1950)(dealing with

a predecessor provision of Ala. Code§13A-12-30, the Supreme Court held that “the

members of the highway patrol named, while acting under the written authority given by the governor, were clothed with authority as peace and law enforcement officers to seize said gambling devices and report their seizure to the solicitor of the county wherein they were seized and on such report he was authorized to file suit seeking their condemnation and destruction”).

See, e.g., Ala. Code § 28-3-43(a)(6)(ABC Board may

On the other hand, this Court is concerned with the Governor’s efforts to appoint

a Special Prosecutor as defined in the Executive Order, as amended. In considering

the impact of such efforts, it is necessary to focus on the office of the State’s Attorney General. The duties of the Attorney General are generally spelled out by statute. For example, “[h]e or she shall also attend to all cases other than criminal that may be pending in the courts of this state, in which the state may be in any manner concerned.” Ala. Code § 36-15-1(2). Moreover, “[a]ll litigation concerning the interest of the state, or any department of the state, shall be under the direction and control of the Attorney General.” Ala. Code § 36-15-21.

Beyond this statutory authority, the Court’s attention turns to Ex parte Weaver, 570 So.2d 675 (Ala. 1990), which is particularly instructive sincethat case also involved a dispute between the Governor and the Attorney General, as the following

describes:

The plaintiffs in the original case are subscribers for health care benefits with Blue Cross and Blue Shield of Alabama (“Blue Cross”). They brought a class action seeking a declaratory judgment and an order directing refunds of excess reserves alleged to be held by Blue Cross. The plaintiffs claimed that Blue Cross

7

had “accumulated an illegal and/or excessive profit and/or reserve and surplus in excess of the amount allowed by statute in Alabama, or required for the solvency of the plan” and that Blue Cross's board of directors was not a representative cross-section of the population, as is required by statute.

Blue Cross moved to dismiss the complaint, alleging, among other things, that the subscribers had failed to exhaust administrative remedies in the Alabama Insurance Department and had failed to join the Alabama Insurance Department. In response to the motion, the subscribers amended their complaint and added the Insurance Department as a defendant.

In March 1989, the circuit court entered orders certifying the plaintiffs' class; directing the Insurance Department to perform certain tasks under certain procedural rules and to report to the court; entering partial summary judgment in favor of the plaintiffs; and denying all other pending motions. The partial summary judgment in favor of the plaintiffs was entered by the trial judge on the issue of liability, i.e., he held as a matter of law that Blue Cross was illegally calculating reserves.

Blue Cross filed a petition for writ of mandamus or prohibition or both, in the Court of Civil Appeals. Mike Weaver, as Commissioner of Insurance, in June 1989 filed an appeal or, in the alternative, a petition for a writ of mandamus from the Court of Civil Appeals to vacate the trial court's order.

Attorney General Don Siegelman filed a motion on October 12, 1989, in the Court of Civil Appeals to dismiss the appeal and the alternative petition for writ of mandamus brought by the Department of Insurance. Briefs were filed and oral argument was held on November 14, 1989, in the Court of Civil Appeals on the issue of control of litigation of the Insurance Department. The Court of Civil Appeals granted the motion to dismiss, ruling that the attorney general has the power to manage and control all litigation on behalf of the State of Alabama and all of its departments.

The petition for writ of mandamus before us seeks to vacate the decision of the Court of Civil Appeals. We must determine whether the attorney general of the State of Alabama has the authority to move to dismiss the State Insurance Department's proceedings in the Court of Civil Appeals over the objection of the commissioner of insurance.

Id. at 676-77.

After an extensive review of both Alabama law and decisions from other jurisdictions, the Supreme Court denied the mandamus petition filed by the

8

Commissioner of Insurance:

We have carefully reviewed the law and the precedents in this case. The overwhelming authority supports the decision of the Court of Civil Appeals that the attorney general has the power to manage and control all litigation on behalf of the State of Alabama. We hold that the attorney general of the State of Alabama has the authority to move to dismiss the State Department of Insurance's proceedings in the Court of Civil Appeals over the objection of the commissioner of insurance.

We recognize that there may be times when the Governor disagrees with the attorney general about matters in litigation. Although we determine that the attorney general is authorized to direct the course of all litigation involving the State and its agencies, the Governor, as “chief magistrate” of the State, may intervene in any such litigation. Rule 24, A.R.Civ.P. As an intervenor, the Governor may express his views and take positions contrary to those argued by the attorney general.

Id. at 684.

Even though the Governor was not a named party in the Weaver litigation, the holding is persuasive here. Rejected there was the argument that the Governor – as the State’s chief magistrate – has the right under the Constitution to hire counsel other than the Attorney General to represent the Commissioner of Insurance. See 570 So.2d at 678. Further, as Justice Houston recognized in dissent, the positions taken by the Commissioner are to be regarded as those of the Governor:

Under this constitutional and statutory structure, the Governor, as the supreme executive responsible under the Constitution for the execution of the laws of this State, acts by and through agency and departmental heads, who serve as vehicles by which the Governor carries out his constitutional mandate. By executing his power to appoint and to remove, the Governor ensures that the executive departments and agencies implement his decisions and adhere to his policies and his interpretations of the laws so that his decisions may be faithfully executed. The act of any of these subordinate executives is the act of the Governor himself.

Id. at 685 (Houston, J., dissenting).

The Weaver decision was recently cited in Chapman v. Gooden, 974 So.2d 972 (Ala. 2007), in addressing the Attorney General’s ability to moot a pending dispute involving the Secretary of State by assuming an interpretation of the Alabama

9

Constitution in line with the plaintiffs’ position. The following excerpt for the Gooden opinion reflects the Supreme Court’s continued regard for the Attorney General as the State’s lead lawyer:

the chief law officer of the state, and on

him are conferred various authorities and duties in connection with instituting and

prosecuting, in the name of the state, suits and other proceedings

preservation and protection of the rights and interests of the state.’ ” Ex parte Weaver, 570 So.2d 675, 679 (Ala.1990) (quoting State ex rel.Carmichael v. Jones, 252 Ala. 479, 484, 41 So.2d 280, 284 (1949)) (emphasis added). See, e.g., Ala.Code 1975, § 36-15-21. Essentially “ ‘all litigation concerning the interest of the state or any department thereof [lies] under the direction and control of the attorney general.’ ” 570 So.2d at 679-80 (quoting State ex rel. Carmichael, 252 Ala. at 484, 41 So.2d at 284).

However, “ ‘[t]he attorney general is

for the

That the attorney general has the “power to formulate legal policy” for the State, and, in connection therewith, the power to bind state officers and departments in litigation is well established. 570 So.2d at 681 (discussing with approval Feeney v. Commonwealth, 373 Mass. 359, 368, 366 N.E.2d 1262, 1267 (1977)). In Ex parte Weaver, supra, this Court held that the attorney general had “the authority to move to dismiss the State Department of Insurance's [appeal/mandamus petition] in the Court of Civil Appeals over the objection of the commissioner of insurance.” 570 So.2d at 684. In so doing, it relied on State ex rel. Carmichael v. Jones:

“In [Jones], the attorney general brought a mandamus action to compel the trial court to enter a consent judgment in a case pending between the State Department of Revenue and several defendants. The question presented was whether the attorney general was authorized and empowered to settle a pending suit by the State filed by him in his official capacity for the collection of an unliquidated tax claim, by taking a consent judgment in the cause for less than the amount sued for and claimed to be due by the revenue department. This Court held ‘that the attorney general, as the chief law officer of the state, was fully empowered to make any bona fide disposition of the cause as in his judgment might be deemed to be to the best interest of the state unless inhibited by organic law.’ ”

Ex parte Weaver, 570 So.2d at 679

Gooden, 974 So.2d at 988.

The Court now returns to Ala. Code § 12-17-216. The Governmental Parties assert

10

that this statute is no longer in play given that attorneys Tyson and Tierney, respectively the District Attorney and the Assistant District Attorney for Mobile County, are acting pursuant to Ala. Code § 12-17-184(10). The Court disagrees, because the Answer and Counterclaim in the Declaratory Judgment Action, and the Petition in the Forfeiture Action, were filed by attorney Barber whose appointment to act ostensibly on behalf of the State of Alabama, and officials thereof, was pursuant to Ala. Code §12-17-216.

In its order of February 11, 2010, this Court mused about possible constitutional infirmities of this statute. Certainly, if interpreted broadly enough, complications of a constitutional magnitude could arise. The Court agrees with the parties, however, that it should if possible avoid constitutional questions. After careful consideration, the Court concludes that it need not wade into a constitutional quagmire. Rather, proper interpretation of the statute allows it to skirt past anyconstitutional challenge while at the same time preserving the proper role of the State’s constitutional officers, as described above.

While several officials have the apparent right to request or designate a supernumerary attorneygeneral to perform duties under Ala. Code §12-17-216, this Court concludes that any such person so designated may perform such duties only subject to the direction and control of the Attorney General. This statute does not enable a supernumerary district attorney to act beyond the Attorney General’s authority. It must be remembered that the Attorney General may direct and control the actions and positions of district attorneys throughout the State. See, e.g., Ala. Code §§ 36-15-14, 36-15-15 & 36-15-21; see also Graddick v. Galanos, 379 So.2d 592,594 (Ala. 1980). To somehow give a supernumerarydistrict attorneyunfettered independence from this control makes no sense.

Indeed, to use Ala. Code § 12-17-216 in an effort to create a new kind of prosecutor, who acts purportedly on behalf of the State but who is answerable to anyone other than the Attorney General, would fly in the face of authorities such as Weaver, Gooden, and the above-referenced statutes conveying broad powers to the Attorney General over litigation involving the State. Given such powers as have historically been given to the Attorney General, which Ala. Code § 36-15-1.1 explicitly confirms, such an interpretation of Ala. Code § 12-17-216 is untenable.

While the Attorney General has not appeared in these actions, this Court has

11

reviewed the Attorney General’s amicus curiae brief submitted to the Supreme

Court.

Counterclaim in the Declaratory Judgment Action, the Petition in the Forfeiture Action, and all other filings in these actions, attorney Barber did so without express

authorization of the Attorney General.

nullity, just as if they had been filed by a private citizen who claimed to represent the State.

Such filings must thus be regarded as a

From that, the inescapable conclusion is that in filing the Answer and

Further, while the appearance of attorneys Tyson and Tierney in these cases is under a different statute, Ala. Code 12-17-184(10), the same result applies. Lowndes County has a District Attorney who has not recused himself and who has in fact looked into this matter, deciding not to pursue litigation. The only officer who can second-guess the district attorney in this regard is the Attorney General. The Governor lacks the authority to create his own prosecutor whenever a district attorney takes a legal position that is not to his liking. While Ala. Code § 12-17- 184(10) authorizes the Governor to designate a district attorney (or an assistant district attorney) to go anywhere in the statein theperformance of statutorily-defined duties, it again must be remembered that the Attorney General retains ultimate authority, as discussed above. Particularly when a district attorney is requested to go into another county, the orderly exercise of such authority is crucial to avoid the chaos arising from conflicting legal positions.

Accordingly, the attorneys who have appeared for the Governmental Parties may not

continue to represent these parties in the Declaratory Judgment Action, nor may they prosecute the Forfeiture Action, unless the Attorney General expressly ratifies what

to this point and authorizes them to continue in this

representation. 1

they have done up

The Attorney General has – for whatever reason – assumed a curious stance. While complaining of the Governor’s actions in the Supreme Court, and in the media, the

1

The Governor does have the authority under Ala. Code § 36-15-21 to employ personal counsel to represent his interests. As the Supreme Court recognized in Weaver, 570 So.2d at 684, even though the Attorney General has the power to direct the course of litigation involving the State and its agencies, the Governor may intervene to express his views and take positions that may be contrary to those of the Attorney General.

12

Attorney General has made no effort to defend the State’s interests in these cases. He is under a duty to do so. Ala. Code § 36-15-1(2) provides in part that the Attorney General “shall attend to all cases other than criminal that may be pending

in the courts of this state, in which the state may be in any manner concerned

(emphasis added). Further, under Ala. Code §36-15-21, “[a]ll litigation concerning the interest of the state, or any department of the state, shall be under the direction and control of the Attorney General” (emphasis added). Especially since these cases involve claims raised against the Governor and the headsof two state agencies, these statutory obligations may not be ignored.

.”

The Attorney General is therefore directed to assume “the direction and control” of the State’s interests in these cases. This Court, of course, may not dictate what the Attorney General’s decisions must be; as the Weaver decision makes clear, such decisions are pursuant to the Attorney General’s prerogative. This Court can, however, direct the Attorney General to come in off the sidelines and decide how the State’s interests are best represented in these cases.

Accordingly, by March 22, 2010, the Attorney General is to advise the Court and the parties of his position, in view of this order and of his statutory duties described above. The Court will thereafter determine the course of further proceedings in these related cases.

DONE and ORDERED on this 8 th day of March, 2010.

copies:

The Honorable Troy King Counsel for the Parties

/s/ Robert S. Vance, Jr. Circuit Judge

13

TAB B

TAB C

TAB D

TAB E

TAB F

SEARCH WAI^RANT

STATE OF ALABAMA 2^^* JUDICIAL CIRCtJIT

TO ANY LAW ENFORCEMENT OmCE R WITHIN THE STATE OF ALABAMA:

Affidavit in support of application for a search warrant having been make before me, and the Coiiit'sfinding that groiinds for the issuance exist or that there is probable cause to believe that they exist, yon are hereby ordered and authorized to forthwith search:

THE FOLLOWING PLACE:

White Hall Eatertaimnent Center. 6967 US Highviray 80 W, White Hall, Lowndes County, Alabania,J:o include all buildingSj, offices, storage facilities, storage containers, trash '

receptacles, vaults,'aiid safe

'

"

"""

AND TO SEIZE THE FOLLOWING PROPERTY SHOULD IT BE FOUND:

Illegal gambling devices, illegal gambling machines, slot machines, computers, computer hardware^ computer software, servers, network devices, and other computer peripheral devices; White Hall Players Club cards, records of White Hall Players Club members, handvwritten records, notes, balance sheets, accounting books, employee records, surveillance data, leases, rentalflgi-eemeiitslhat would be evidence of.possession of a gambling device, simple gambling or promotbig gambling, as described in the AJabama rn'minnl C.nt^p.; other equipment and records located at the' stated location that contains data, in whatever format they may exist, related to the operation of illegal gambling devices, illegal gambling machines, and slot rnachines; records, in whatever format they may exist, related to the winnings, losses, payment methods, including but not limited to Department of the Treasury Internal Revenue Service Form W-2G's, and U.S. Currency apparently obtained through the use or operation of any illegal gambling devices, illegal gambling machines or slot machines, or other illegal gambling activity upon said premises.

SEIZURE IN PLACE:

In the alternative to a search and seizure, due to thelgrgelSnmber of suspected illegal gambling devices, illegal gambling machines, and slpJ-n:Iachines, and to protect the machines and their electrical and computer wiring sj^^ortJfMtfthe possibility of any physical damage during a seizure and removal of same, a 'Jsei^mr^^tfpiace'' is hereby authorized for a reasonable period of time, not to exceed ten n'0}^M)fOT^ e State to complete the the examination of said machines and to seize a reasonabl|,i«m5ber of actual machines as well as any of the other specified material set out h^reifiaDCr^.

^•"""""^

Judge, 2nd Judicial Circuit.

You are hereby ftirtherordered to make a retum of this warrant and an inventory of all property seized hereunder to a Judge of the 2"^* Judicial Circuit within ten (10) days of execution.

This warrant may be executed at any time of the day or night.

ISSUED TO:

U Mike Reese at

g^'^ V

o'clock

M.,

this the

"Tay of March,

2009.

,,2"'^ JudiQS:^! Circuit

TAB G

IN THE CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA

CORNERSTONE COMMUNITY OUTREACH, INC.,

Plaintiff,

v.

BOB RILEY, GOVERNOR, STATE OF ALABAMA; DAVID BARBER, SPECIAL PROSECUTOR FOR TASK FORCE ON ILLEGAL GAMBLING PER GOVERNOR'S EXECUTIVE ORDER #44; EMORY FOLMAR, ADMINISTRATOR ALABAMA BEVERAGE CONTROL BOARD; COL. CHRISTOPHER MURPHY, DIRECTOR, DEPARTMENT OF PUBIC SAFETY,

Defendants.

Civil Action No.: CV-09-900019

AMENDED VERIFIED COMPLAINT FOR TEMPORARY RESTRAINING ORDER AND OTHER RELIEF

Comes now Plaintiff,

Cornerstone Community Outreach, Inc. ("Cornerstone")

and files this verified complaint seeking a temporary restraining order, preliminary and

permanent injimctions, and declaratory relief. Plaintiff says unto the court as follows:

PARTIES

1. Cornerstone is a non-profit

organization, tax

exempt, organized

and

operating under the laws of the State of Alabama.

Cornerstone is located and does

business in Lowndes County, Alabama.

Cornerstone operates charity bingo games in

White Hall, Alabama pursuant to Alabama Constitutional Amendment 674, Constitution

of Alabama of 1901.

2.

The Defendants are all State officials, including the governor, in charge of

a department or agency of the State of Alabama, located in Montgomery County,

Alabama.

Defendants Barber, Folmar, and Murphy are members of the Task Force on

Illegal Gambling created by Governor Riley's Executive Order No. 44.

JURISDICTION

3. This complaint is brought pursuant to the provisions of Ala. Code § 6-6-

220, et seq. (1975), Declaratory Judgments,

Ala. Code § 6-6-500,

et seq. (1975),

Injunctions,

Ala . R. Civ. P. 57, Declaratory Judgments,

and

Ala . R.

Civ. P. 65,

Injunctions, together with all applicable statutes and common law.

FACTS

4. Cornerstone obtained a license fi"om the Town of White Hall, Alabama

and operates a bingo gaming facility called the White Hall Entertainment Center ("White

Hall EC"), located at 6999 U.S. Highway 80 West, White Hall, Alabama 36040. White

Hall E C is licensed pursuant to the authority granted to the Town o f White Hall by

Alabama

Constitutional

Amendment

Commission and Rules.

674,

and

the

Town of White Hall's Bingo

5. On December 29, 2008, Governor Bob Riley entered Executive Order No.

44 that created a Task Force on Illegal Gambling ("Task Force") to purportedly promote

uniform statewide enforcement

of Alabama anti-gambling laws.

The Task Force is

composed of a Special Prosecutor and Task Force Commander, and agents, investigators,

and

the

heads of the

Alabama Beverage

Control Board ("AB C Board") and

the

Department of Public Safety ("DPS").

The Governor appointed supernumerary district

attorney David Barber as the Special Prosecutor and Task Force Commander.

6. Executive Order No. 44 provides that the Task Force shall:

2

serve as a resource for local prosecutors and law enforcement ofHcials who request assistance i n the investigation and prosecution of gambling-related crimes. The Task Force may provide technical assistance, investigative support, law enforcement personnel, and any other assistance requested by local authorities reasonably necessary to enforce Alabama's anti-gambling laws.

Executive Order No. 44, Dec. 30, 2008 (emaphases added).

7. On March 18, 2009, Defendants, in their capacity as members of the Task

Force, unilaterally and without a request from the local authorities, applied for and

obtained a search warrant issued by District Judge Terri Bozeman Lovell.'

8.

Early

in the

morning hours

of March

19, 2009, the

Task Force,

accompanied by members of the Alabama Bureau of Investigation and the Alabama

Highway Patrol, ostensibly executed the search warrant and raided the White Hall EC at

6999 U.S. Highway 80 West, White Hall, Alabama 36040. The search warrant, however,

did not authorize a search of that address.

The search warrant authorized "any law

enforcement officer within the State o f Alabama" to search "White Hall Entertainment

Center, 6967 US Highway 80 W, White Hall, Lowndes County, Alabama" (rather than

6999 U.S. Highway 80 West where the White Hall E C is located).

Despite being

admonished of this error, the Task Force, without announcing itself or notifying anyone

of the search warrant prior to entry, entered the doors of the White Hall E C with guns

drawn, and began forcefully removing server-based bingo gaming systems, computers,

servers, and all cash in the building.

9. The search warrant is extremely broad in scope, vague, and ambiguous,

and calls for, among other things, the seizure of "[ijllegal gambling devices, illegal

' A true and correct copy o f the search warrant is attached hereto as Exhibit A .

3

gambling machines, slot machines, computers, computer hardware, computer software,

servers

handwritten records, notes, balance sheets, accounting books, employee

records

that would be evidence of possession of a gambling device, simple

gambling or promoting gambling, as described in the Alabama Criminal Code

."

See Ex. A (emphasis added). In addition, the search warrant calls for the seizure of "U.S.

Currency apparently obtained through the use or operation of any illegal gambling

devices

10.

." Id. (emphasis added).

Pursuant

to the Alabama Criminal Code, "possession

of a gambling

device," "simple gambling," and "promoting gambling" all require that the complained of

gambling activity be "unlawful." See Ala. Code § 13A-12-21(a) ("A person commits the

crime of simple gambling if he knowingly advances or profits firom unlawful gambling

activity as a player.") (emphasis added); Ala. Code § 13A-12-22(a) ("A person commits

the crime of promoting gambling i f he knowingly advances or profits from unlawful

gambling activity otherwise than as a player.") (emphasis added); Ala. Code § 13A-12-27

("A person commits the crime of possession of a gambhng device i f with knowledge of

the character thereof he manufactures, sells, transports, places or possesses, or conducts

or negotiates any transaction affecting or designed to affect ownership, custody or use of:

(1) A slot machine; or (2) Any other gambling device, with the intention that it be used in

the advancement of unlawful gambling activity.")^ (emphasis added).

^ A "slot machine" is defined as

A gambling device that, as a result of the insertion of a coin or other object, operates, either completely automatically or with the aid of some physical act by the player, in such

a manner that, depending upon elements of chance, it may eject something of value. A

device so constructed or readily adaptable or convertible to such use is no less a slot machine because it is not in working order or because some mechanical act of manipulation or repair is required to accomplish its adaptation, conversion or workability.

4

11.

None of the equipment, including server-based bingo gaming systems, at

White Hall EC has been deemed unlawful or as constituting illegal gambling devices. To

the contrary, it is undisputed that the operation of charity bingo is lawful in Lowndes

County, Alabama. See Ala. Const. Amend. No. 674.

The equipment at White Hall EC

and the equipment unlawfiiUy seized by the Defendants is not illegal and is used for the

lawful operation of charity bingo in Lowndes County, Alabama.

12. The Defendants, prior to raiding the White Hall EC, made no attempt to

test the legality of the equipment that it ultimately seized.

The Defendants, prior to

raiding the White Hall EC, made no contact with Cornerstone or any of its vendors to

request the opportunity to test any o f the equipment. The Defendants, prior to raiding the

White Hall EC, made no attempt to have a court of competent jurisdiction declare

whether any of the equipment constituted illegal gambling devices.

13. A s a consequence of the Defendants' unlawfiil and premature raid on

White Hall EC, (i) the operations at White Hall E C have been forced to cease for an

indefinite period of time; (ii) Cornerstone is without sufficient cash to make payroll for

its approximately 105 employees at White Hall E C (White Hall E C being the second

largest employer in Lowndes County); (iii) employees of White Hall EC will be without

work while operations have ceased; (iv) Cornerstone will be unable to generate income

and make expected distributions to its member charities while operations have ceased; (v)

Cornerstone will have to expend considerable monetary and human resources to make

White Hall E C operable again, even once its seized equipment is

returned; and (vi)

Nor is it any less a slot machine because apart from its use or adaptability as such it may also sell or deliver something of value on a basis other than chance.

Ala. Code§ 13A-12-20(10).

5

Cornerstone will have to expend considerable monetary resources to repair and/or replace

the thousands of dollars worth of equipment that was damaged by the Task Force in the

raid. See Affidavit of Chad Dickie attached hereto as Exhibit B.

14. Defendant Barber has informed Cornerstone that the Task Force may

conduct "further operations" at White Hall EC.

Accordingly, a temporary restraining

order and preliminary injunction are necessary to (i) preserve the status quo pending the

resolution of Cornerstone's claims for injunctive and declaratory relief, and (ii) halt the

unlawful

actions of the

Defendants

that have caused and will

continue to cause

irreparable harm to Cornerstone for which no adequate remedy at law exists.

COUNT ONE TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND PERMANENT INJUNCTION

15.

Plaintiff re-alleges, repleads and incorporates fully herein paragraphs 1-14

above.

16.

I f the Defendants are not (i) prohibited from continuing their actions,

including

conducting further

raids, and taking other

actions to interfere

with

the

operations of Plaintiff s charity bingo operation, and (ii) required to return the unlawfully

seized equipment, records, and cash, Plaintiff will suffer irreparable harm. The effect of

the Defendants' improper actions is to shut down the Plaintiffs facility, for which there

is no adequate remedy at law.

17. A temporary restraining order and preliminary injunction are necessary to

stop the unlawful and unauthorized actions being carried out and threatened to be carried

out by the Defendants, so as to permit Plaintiff to resume operation of charity bingo

without further interference from Defendants and to preserve such continued operation as

the status quo pending a hearing on the merits of this cause and a ruling as to the legality

6

of electromc bingo in Lowndes County, Alabama by this court. Upon final hearing,

Plaintiff is entitled to permanent injunctive relief

COUNT TWO DECLARATORY JUDGMENT (UNLAWFUL SEIZURE)

18. Plaintiff re-alleges, repleads and incorporates fully herein paragraphs 1-17

above.

19. A justiciable controversy exists as to whether (i) the actions of the

Defendants are proper and lawful; (ii) the search warrant is valid; (iii) the search warrant

was properly executed; and (iv) the Defendants must return and restore to its pre-raid

condition the equipment that it seized from the White Hall EC.

20. Plaintiff is an interested party under Ala. Code § 6-6-223, because the

effect of the Defendants' actions is to close Plaintiffs business at White Hall EC.

21. Plaintiff is also entitled to immediate return of the seized equipment

pursuant to Ala. Code § 15-5-16 and other applicable law.

22. Therefore, Plaintiff is entitled to, and requests, a declaratory judgment that

Defendants' actions, as alleged herein, are without authority and are otherwise contrary to

law.

COUNT THREE DECLARATORY JUDGMENT (LEGALITY OF ELECTRONIC BINGO)

23. Plaintiff re-alleges, repleads and incorporates fully herein paragraphs 1-22

above.

24. A justiciable controversy exists as to whether the operation of electronic

bingo as conducted at White Hall E C is consistent with and permitted by Alabama

Constitutional Amendment 674, which authorizes the operation of charity bingo in

7

Lowndes County, Alabama, and, accordingly, whether the equipment seized by the

Defendants constitutes illegal gambling devices under Ala. Code § 13A-12-20 et seq.

25. Plaintiff is an interested party under Ala. Code. § 6-6-223, because the

effect

o f the Defendants'

actions, based

on misapplication of a state statute and

constitutional amendment, is to close Plaintiffs business at White Hall EC.

RELIEF

WHEREFORE, Cornerstone Community Outreach, Inc. prays that the court will:

a. take jurisdiction of this matter;

b.

enter

a

temporary

restraining

order

and

preliminary

injunction

immediately enjoining and prohibiting the Defendants, their agents and assigns, including

the

Task

Force, from

engaging

in

said improper

conduct

pending the

ultimate

determination of the merits of this case, including, without limitation, conducting further

raids, and taking other actions to interfere with the operations of Plaintiff s charity bingo

operation; directing defendants to return all unlawfully seized equipment, records, and

cash to Plaintiff; and granting such other temporary and preliminary relief as may be

appropriate;

c. permanently enjoin and prohibit the Defendants, their agents and assigns,

including the Task Force, from engaging in said improper conduct including, without

limitation, conducting further

raids, and taking other actions to interfere

with the

operations of Plaintiffs

charity bingo operation; directing Defendants

to retum all

unlawfully seized equipment, records, and cash to Plaintiff; and granting such other,

further and different permanent relief as may be appropriate;

d. adjudge and declare the rights and responsibilities of the parties;

8

e. adjudge the actions of the Defendants as improper, and order Defendants

to retum all seized equipment pursuant to Ala. Code § 15-5-16 and other applicable law;

f. adjudge and declare that the operation of electronic bingo as conducted at

the White Hall Entertainment Center is lawful, and that the equipment at the White Hall

Entertainment Center is not subject to seizure; and

g. award damages for all profits lost and damages to the server-based bingo

gaming systems, computers, servers, etc.; and

h. grant such other and further relief as may be appropriate under the facts

and law of this case.

Respectfully submitted,

/si Collins Pettaway, Jr. Collins Pettaway, Jr.(PET008) Attorney for Plaintiff

OF COUNSEL:

Chestnut, Sanders, Sanders & Pettaway, L.L.C. P. O. Box 1290 Selma, A L 36702-1290 (334) 875-9264

Robert D. Segall Lee H. Copeland Copeland, Franco, Screws & Gill, P.A. 444 South Perry Street P.O.Box 347 Montgomery, Alabama 36101-0347

(334)834-1180

STATE OF ALABAMA

ACKNOWLEDGMENT

COUNTY OF DALLAS

9

BEFORE ME , the undersigned, a Notary Public, in and for said County and State, personally appeared CHAD DICKIE, Facihty/Operations Manager, who is known to me, and who is duly sworn, deposes on oath and say:

"I am Facility/Operations Manager of the 'White Hall Entertainment Center.' I have personal knowledge of the facts alleged in the complaint and adopt fuUy."

Is/ Chad Dickie

CHAD DICKIE

SWORN TO and SUBSCRIBED before me on this 23rd day of March 2009.

MY COMMISSION EXPIRES: 6/6/09

10

/s/Arthurene A. Tyre NOTARY PUBLIC

CERTIFICATE OF SERVICE

I hereby certify that on the 23rd day of March, 2009, I electronically filed the

foregoing with the Clerk of the Court using the AlaFile E-File system which will send

notification of such filing to all counsel who have filed an appearance in these cases. I

have

also

emailed

a

copy

of

this

amendment

to

Honorable

Of Counsel

11

David

Barber

at

TAB H

ELECTRONICALLY FILED 3/23/2009 1:19 PM

CV-2009-900019.00

CIRCUIT COLfRT OF LOWNDES COUNTY, ALABAMA RUBY JONES, CLERK

'OT')

IN THE CIRCinT COURT OF LOWNDES COUNTY, ALABAMA

CORNERSTONE COMMUNITY OUTREACH, INC.,

Petitioner^

V.

BOB RILEY, etal

Respondents.

CASE NO. CV-09-900019

MOTION TO INTERVENE

COMES NOW, Freedom Trail Ventures,

Ltd.

(hereinafter • TTV")and moves to

intervene in this case pursuant to Rule 24 (a and/or b), Alabama Rules of Civil Procedure. A s

grotmds for its motion, FTV states the following:

1. During late December 2008, Bob Riley, Governor of the State of Alabama, issued

Executive Order No. 44, a copy of which is attached hereto and made a part hereof.

2. On or about March 19,2009, the Task Force referenced in the Executive Order

seized certain property in White Hall, Lowndes County, Alabama which is owned and/or leased

by FTV. Attached hereto and made a part hereof is the purported search warrant. Also attached

hereto and made a part hereof is a document setting forth some of the property seized by the Task

Force, most of which is owned by FTV and/or FTV has an interest.

3. FTV claims an interest in the property which is the subject of this action and FTV

is so situated that the disposition of this case may impair its ability to protect said property. The

interest of FTV is not adequately represented by any of the existing parties.

4. FTV' s claims and the main action have common questions of law and/or fact.

6.

Judicial economy will be served by this intervention, hitervention will avoid

duplicative and wasteful legal action, as well as the risk of inconsistent rulings. Intervention will

not delay this proceeding or prejudice any party.

7. Attached hereto and made a part hereof are Intervenor's Complaint and Motions.

WHEI^FORE, FTV prays that this Honorable Court will issue an Order allowing its

intervention; allowing its complaint and motions hereto filed; and any other relief and/or matters

to which FTV is entitled to under the appUcable facts, circumstances and law.

OF COUNSEL:

MELTON, ESPY & WILLIAMS, P.C. P.O. Drawer 5130 Montgomery, AL 36103 Telephone: 334-263-6621 Facsimile: 334-263-7252

Respectfully submitted,

^,m(ESPeo5)

M. EspyCESP005)

CERTIFICATE OF SERVICE

— ^

I hereby certify that a copy of the foregoing was served upon the following electronically via AlaFile; email and/or regular mail, postage prepaid and properly addressed on this the '2fp day of March, 2009.

Collins Pettaway CHESTNfUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL P.O. Box 628 Sehna,AL 36703 Collins pettawavjrC5),Yahoo.CQm

Lee Copeland Robert D. Segall Copeland, Franco, Screws & Gill, P.A. P.O. Box 347 Montgomery, Alabama 36101-0347 copeland(%copeland franco.com sefiaH@copelandfranco.com

Bob Riley

Governor's Office

State Capitol

600 Dexter Avenue

Montgomery, AL 36104

David Barber c/o Governor's Office StateCapitol

600 Dexter Avenue

Montgomery, AL 36104 barberd(5),i ccaj-org

Emory Folmar ABC Board 2715 Gunter Park Drive West Montgomery, AL 36109

Christopher Murphy

Department of Public Safety

301 South Ripley Street

Montgomery, AL 36104

TAB I

Im))

ELECTRONICALLY FILED 3/23/2009 1:19 PM

^

CV-2009-900019.00

CIRCUIT COURT OF • LOWNDES COUNTY, ALABAMA RUBY JONES, CLERK

IN THE CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA

CORNERSTONE COMMUNITY OUTREACH, INC.,

Petitioner,

V ,

CASE NO. CV-09-900019.

BOB RILEY, etal

Respondents.

COMPLAINT OF INTERVENOR

1. During December, 2008, Governor Bob Riley issued Executive Order No. 44, a

copy of which is attached hereto and made a part hereof.

2. On or about March 19,2009, members of the Task Force executed a search

warrant in White Hall, Lowndes County, Alabama. Attached hereto is the search warrant and a

portion of the property seized illegally and wrongfully by the Task Force.

3. The pertinent portions of the complaint (main action) as amended are adopted and

incorporated herein, including the respective parties both Plaintiff and Defendants.

Freedom

Trail Ventures, Ltd, is intervening herem as a Party Plaintiff.

4. The actions of the Defendants, including members of the Task Force and other

persons acting in concert therewith, on or about March 19,2009 in Lowndes County, Alabama

were illegal, wrongfiil, unlawful, negligent, wanton and/or unconstitutional. (Such actions

hereinafter may collectively be referred to as "unlawful".) The unlawful actions of the

Defendants caused, damaged and/or injured Freedom Trail Ventures, Ltd. The Defendants, along

with others, seized and are now m unlawful possession of property (owned and/or leased)

belongbag to Freedom Trail Ventures, Ltd. Further, Defendants are guilty of conversion.

WHEREFORE, Freedom Trail Ventures, Ltd. request the following relief:

a. That the actions of the Defendants be declared imlawful

b. That the subject property be declared legal.

c. That all property (owned and/or leased) of Freedom Trail Ventures, Ltd. be

returned to Freedom Trail Ventures, Ltd.

d. That the Court enter appropriate injunctions and other immediate relief against

Defendants including, but not limited to. Temporary Restraining Order, Preliminary Injunction,

and Permanent Injunction directing and prohibiting Defendants and anyone acting for and/or in

concert therewith from engaging in anyfiirtherunlawful conduct as referenced herein; and

e. Any and all further relief to which Freedom Trail Ventures, Ltd. may be entitled

to under the facts, circumstances and law.

OF COUNSEL:

Respectfully submitted.

MELTON, ESPY & WILLIAMS, P.C. P.O. Drawer 5130 Montgomery, AL 36103 Telephone: 334-263-6621 Facsimile: 334-263-7252

CERTmCATE OF SERVICE

I hereby certify that a copy of the foregoiag was served upon the following electronically^ via AlaFile; email and/or regular mail, postage prepaid and properly addressed on this the day of March, 2009.

CoUins Pettaway CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL P.O. Box 628 Sehna,AL 36703 coitins nettawavirfgjvahoo.com

Lee Copeland Robert D. Segall Copeland, Franco, Screws & Gill, P.A. P.O. Box 347 Montgomery, Alabama 36101-0347 segallfglcopelandfranco.com

Bob Riley Governor's Office State Capitol 600 Dexter Avenue Montgomery, AL 36104

David Barber

c/p Governor's Office StateCapitol

600 Dexter Avenue

Montgomery, AL 36104 faarberd@ jccal. o rg

Emory Folmar ABC Board 2715 Gunter Park Drive West Montgomery, AL 36109

Christopher Murphy

Department of Public Safety

301 South Ripley Street

Montgomery, AL 36104

OfCmWi

^

TAB J

IN THE CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA

CORNERSTONE COMMUNITY, OUTREACH, INC.,

PlaintifT,

V,

BOB RILEY, GOVERNOR, STATE OF ALABAMA; DAVID BARBER, SPECUL PROSECUTOR FOR TASK FORCE ON ILLEGAL GAMBLING PER GOVERNOR'S EXECUTIVE ORDER #44; EMORY FOLMAR, ADMINISTRATOR ALABAMA BEVERAGE CONTROL BOARD; COL. CHmSTOPHER MURPHY, DIRECTOR, DEPARTMENT OF PUBIC SAFETY,

Defendants.

Civil Action No.: CV-09-900019

ORDER

During the pre-dawn hours of March 19, 2009, Govemor Bob Riley's Task Force on

Illegal Gambling ("the Task Force") conducted a raid at the White Hall Entertainment Center

("White Hall EC"), which is owned and operated by the Plaintiff Cornerstone Community

Outreach, Inc. ("Cornerstone"). Approximately fifty members of the Task Force conducted the

raid with the assistance of prisoners on loan from the Department of Corrections. Upon entry into

the building, several of the armed officers had their weapons drawn. A s a result o f the raid, the

Task

Force seized

over

100

gaming

machines,

computers,

software,

books, records,

approximately $535,000 in cash and other items. A t 1:30 PM on the same date, the Plaintiff,

Cornerstone, filed in the Circuit Court of Lowndes County its first pleadings seeking a temporary

restraining order, preliminary and permanent iojunctive relief, declaratory relief and other relief.

Freedom Trail Ventures, Ltd. ("FTV") later sought to intervene in this matter as a Plaintiff